"Counsel"
This news won't reach most people, but it should. Justin Fuller, a Texas death row inmate, was executed last week. He had a court-appointed lawyer represent him in his state habeas corpus proceedings. Habeas corpus is the mechanism by which one challenges the legality of their confinement or sentence and involves, generally, making challenges to the fairness of the trial.
To give some background as to why this is so egregious, if you want to challenge the legality of your conviction/sentence in federal court, federal law says you have to first "exhaust" your claims in state court. A federal court will not consider anything you didn't raise in the state court. Additionally, you only get "one bite at the apple," which means you only get to apply once in both state and federal court. Therefore, if you fuck up in state court, you're fucked for federal court. This is important because the federal courts are the only place to get relief, since the challenge in the state court is brought in the same court in which you were convicted. (It's the equivalent of suing the trial judge for failing to give you a fair trial and then having the trial judge preside over your suit.)
Get this, from the San Antonio News Express (published before Fuller's execution, to no avail):
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Texas is scheduled to execute a convict today whose lawyer filed an appeal with incoherent repetitions, rambling arguments and language clearly lifted from one of his previous cases, so that at one point it described the wrong crime.
While inmate Justin Chaz Fuller's last hope for a temporary reprieve now waits on the U.S. Supreme Court and the governor, his case is being cited as an example of the state's failure to adequately examine death penalty convictions.
The same lawyer, in another pending capital case, apparently copied his client's letters so that, instead of citing legal cases, the filed documents echo the inmate's unintelligible arguments, flawed grammar and even his complaint that he was about to run out of paper.
For his work in these two appeals, the state paid the attorney Toby C. Wilkinson of Greenville about $18,000 in each case, for a total of $36,514. Wilkinson did not return repeated calls.
State law requires that death row inmates receive "competent counsel" for their post-conviction challenges known as applications for writ of habeas corpus. In May 2001, the state's highest criminal court tapped Wilkinson to work for Fuller, a Dallas native convicted of killing a 21-year-old man, Donald Whittington III.
At first glance, Wilkinson's 111-page motion appears unremarkable. But by Page 3, it starts quoting long passages from trial testimony without clearly explaining their relevance. Page 5 spends half a page repeating the exact passages quoted a page earlier. A similar repetition follows on Page 6.
The numbering of arguments doesn't maintain a logical sequence. Typos obscure some quotes, as in, "i &tilde hus, we diseeni no ab &tilde tse of discretion in th i &tilde coult &tilde s denial."
Perhaps most striking, the pleadings for Fuller copied wording from an appeal Wilkinson filed for a different client, Henry Earl Dunn, in an unrelated case. As a result, it complains about testing for blood on a gun used by Dunn's co-defendant seven years earlier.
Wilkinson's brief "should have been submitted on a Big Chief Tablet using an eight-count box of Crayolas," Don Bailey, the lawyer who replaced Wilkinson when Fuller's appeal was denied, wrote in a subsequent appeal.
Since then, Bailey has argued unsuccessfully that Fuller did not shoot Whittington in 1997 and should have received at most a life sentence like his co-defendants.
Edward Marty, formerly an assistant district attorney in Smith County, said he recalled being disturbed by the quality of the legal brief and taking his concern to the trial judge.
Any confusion in Wilkinson's pleadings was remedied at a subsequent hearing, said Marty, now general counsel for the Texas Court of Criminal Appeals.
"He was then given an opportunity at a ... hearing to make up any differences and clear up any thing he wanted to," said Marty, whose office conducts preliminary reviews of most death penalty appeals. Since he left the DA's office, he has not been involved in Fuller's case.
About three years after filing Fuller's claim, Wilkinson was chosen by a Hopkins County district judge to file a similar habeas petition on behalf of Daniel Clate Acker.
Wilkinson's legal brief spends 13 pages naming seemingly every document filed in the case. It then makes five claims that are almost word-for-word identical to claims in Fuller's case. The next 24 pages seem copied from his client's letters, so that they seldom if ever cite case law and occasionally lapse into first-person narrative.
Claim No. 36 concludes: "I'm just about out of carbon paper so before I run out I want to try and list everything that was added to and took from me to convict me on the next page then as soon as I get some more typing supplies I have about thirty more errors I want to tell you about and have brought up in my appeal."
Acker's appeal is still pending. Braced for rejection, the inmate apparently sought a California lawyer to represent him when the case moves to federal court.
"It's like nothing I've ever seen before," the attorney, A. Richard Ellis of Mill Valley, Calif., said of the petition filed by Wilkinson.
The court of criminal appeals decides which lawyers can handle death penalty appeals. Presiding Judge Sharon Keller said she couldn't comment on individual cases, but the court's staff carefully screens attorneys. Then it relies on trial judges to appoint tried-and-tested counsel.
"If we thought somebody should be taken off the list because he's not doing a good job, we'd take him off the list," she said, "or we'd consider taking him off the list."
Wilkinson isn't known to have been given any more death penalty work since 2003, but his name is still on the list. And though the count might shrink by day's end, six of his clients are still on death row.
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Personally, I haven't seen anything this bad before, although I've seem some things that are close (e.g., cutting and pasting the same shitty pleadings from one client's petition into another's). The bottom line in all this is that Fuller was executed and nobody in Texas even knows if he should have been. The federal courts would not have considered anything because nothing was presented to the state courts. But that doesn't matter. It's a shell game. Provide the "process," make it look like something is happening, and then kill them.
Lawyers are, by and large, idiots. And the bottom tier of the idiots do criminal work, where they can get appointed by courts and paid for work they don't do. Part of the problem of incompetent work is inherent in the system, where the State sets the pay schedule for appointed counsel low enough to ensure incompetence (i.e., a lawyer who depends on court appointments must take on a huge caseload to make a living and in turn cannot do any of the work required for his or her cases).
But the kicker is that the Texas courts--even Texas' highest criminal court--don't even blink when this kind of shit is given to them. The old adage that he who represents himself has a fool for a client doesn't always apply when the alternative is court-appointed counsel. Some inmates can argue circles around their lawyers, and because they care, they take the time and put in the effort to do it right. (Of course, courts don't pay attention to pro se pleadings, so they're screwed either way.)
If anybody wants to donate to help solve this problem, here's a good place to start.
To give some background as to why this is so egregious, if you want to challenge the legality of your conviction/sentence in federal court, federal law says you have to first "exhaust" your claims in state court. A federal court will not consider anything you didn't raise in the state court. Additionally, you only get "one bite at the apple," which means you only get to apply once in both state and federal court. Therefore, if you fuck up in state court, you're fucked for federal court. This is important because the federal courts are the only place to get relief, since the challenge in the state court is brought in the same court in which you were convicted. (It's the equivalent of suing the trial judge for failing to give you a fair trial and then having the trial judge preside over your suit.)
Get this, from the San Antonio News Express (published before Fuller's execution, to no avail):
------------
Texas is scheduled to execute a convict today whose lawyer filed an appeal with incoherent repetitions, rambling arguments and language clearly lifted from one of his previous cases, so that at one point it described the wrong crime.
While inmate Justin Chaz Fuller's last hope for a temporary reprieve now waits on the U.S. Supreme Court and the governor, his case is being cited as an example of the state's failure to adequately examine death penalty convictions.
The same lawyer, in another pending capital case, apparently copied his client's letters so that, instead of citing legal cases, the filed documents echo the inmate's unintelligible arguments, flawed grammar and even his complaint that he was about to run out of paper.
For his work in these two appeals, the state paid the attorney Toby C. Wilkinson of Greenville about $18,000 in each case, for a total of $36,514. Wilkinson did not return repeated calls.
State law requires that death row inmates receive "competent counsel" for their post-conviction challenges known as applications for writ of habeas corpus. In May 2001, the state's highest criminal court tapped Wilkinson to work for Fuller, a Dallas native convicted of killing a 21-year-old man, Donald Whittington III.
At first glance, Wilkinson's 111-page motion appears unremarkable. But by Page 3, it starts quoting long passages from trial testimony without clearly explaining their relevance. Page 5 spends half a page repeating the exact passages quoted a page earlier. A similar repetition follows on Page 6.
The numbering of arguments doesn't maintain a logical sequence. Typos obscure some quotes, as in, "i &tilde hus, we diseeni no ab &tilde tse of discretion in th i &tilde coult &tilde s denial."
Perhaps most striking, the pleadings for Fuller copied wording from an appeal Wilkinson filed for a different client, Henry Earl Dunn, in an unrelated case. As a result, it complains about testing for blood on a gun used by Dunn's co-defendant seven years earlier.
Wilkinson's brief "should have been submitted on a Big Chief Tablet using an eight-count box of Crayolas," Don Bailey, the lawyer who replaced Wilkinson when Fuller's appeal was denied, wrote in a subsequent appeal.
Since then, Bailey has argued unsuccessfully that Fuller did not shoot Whittington in 1997 and should have received at most a life sentence like his co-defendants.
Edward Marty, formerly an assistant district attorney in Smith County, said he recalled being disturbed by the quality of the legal brief and taking his concern to the trial judge.
Any confusion in Wilkinson's pleadings was remedied at a subsequent hearing, said Marty, now general counsel for the Texas Court of Criminal Appeals.
"He was then given an opportunity at a ... hearing to make up any differences and clear up any thing he wanted to," said Marty, whose office conducts preliminary reviews of most death penalty appeals. Since he left the DA's office, he has not been involved in Fuller's case.
About three years after filing Fuller's claim, Wilkinson was chosen by a Hopkins County district judge to file a similar habeas petition on behalf of Daniel Clate Acker.
Wilkinson's legal brief spends 13 pages naming seemingly every document filed in the case. It then makes five claims that are almost word-for-word identical to claims in Fuller's case. The next 24 pages seem copied from his client's letters, so that they seldom if ever cite case law and occasionally lapse into first-person narrative.
Claim No. 36 concludes: "I'm just about out of carbon paper so before I run out I want to try and list everything that was added to and took from me to convict me on the next page then as soon as I get some more typing supplies I have about thirty more errors I want to tell you about and have brought up in my appeal."
Acker's appeal is still pending. Braced for rejection, the inmate apparently sought a California lawyer to represent him when the case moves to federal court.
"It's like nothing I've ever seen before," the attorney, A. Richard Ellis of Mill Valley, Calif., said of the petition filed by Wilkinson.
The court of criminal appeals decides which lawyers can handle death penalty appeals. Presiding Judge Sharon Keller said she couldn't comment on individual cases, but the court's staff carefully screens attorneys. Then it relies on trial judges to appoint tried-and-tested counsel.
"If we thought somebody should be taken off the list because he's not doing a good job, we'd take him off the list," she said, "or we'd consider taking him off the list."
Wilkinson isn't known to have been given any more death penalty work since 2003, but his name is still on the list. And though the count might shrink by day's end, six of his clients are still on death row.
----------------
Personally, I haven't seen anything this bad before, although I've seem some things that are close (e.g., cutting and pasting the same shitty pleadings from one client's petition into another's). The bottom line in all this is that Fuller was executed and nobody in Texas even knows if he should have been. The federal courts would not have considered anything because nothing was presented to the state courts. But that doesn't matter. It's a shell game. Provide the "process," make it look like something is happening, and then kill them.
Lawyers are, by and large, idiots. And the bottom tier of the idiots do criminal work, where they can get appointed by courts and paid for work they don't do. Part of the problem of incompetent work is inherent in the system, where the State sets the pay schedule for appointed counsel low enough to ensure incompetence (i.e., a lawyer who depends on court appointments must take on a huge caseload to make a living and in turn cannot do any of the work required for his or her cases).
But the kicker is that the Texas courts--even Texas' highest criminal court--don't even blink when this kind of shit is given to them. The old adage that he who represents himself has a fool for a client doesn't always apply when the alternative is court-appointed counsel. Some inmates can argue circles around their lawyers, and because they care, they take the time and put in the effort to do it right. (Of course, courts don't pay attention to pro se pleadings, so they're screwed either way.)
If anybody wants to donate to help solve this problem, here's a good place to start.